Belmont Club

The death of penalties

The Scotus Blog covers the Supreme Court’s decision that it is unconstitutional to impose the death penalty for the crime of raping a child. “The broad declaration that death sentences should be reserved “for crimes that take the life of the victim” will apply, the Court said, to crimes against individuals — thus leaving intact, for example, a possible death sentence for treason.” Justice Kennedy argued that one reason “for nullifying a death sentence for raping a child was that the child victim gets enlisted, perhaps repeatedly, to recount the crime, forcing on the child ‘a moral choice’ that the youngster is not mature enough to make.” But Orin Kerr at the Volokh Conspiracy cites Justice Alito’s dissent on this very point.

A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35.

These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes,” Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here.

CNN reports that “in his dissent, Alito wrote that the majority ruled against the death penalty ‘no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted and no matter how heinous the perpetrator’s criminal record may be.’ ” The PrawsBlawg asks whether as a practical matter the death penalty isn’t slowly being phased out.

In recent years the Supreme Court has prohibited the execution of the mentally retarded and those who were under 18 when they committed their crimes. Add to that list today those who commit crimes that do not “take the life of the victim” and it is clear that the Supreme Court is attempting to limit, though certainly not eliminate, the use of the death penalty in the U.S. The Court appears to be taking seriously the mandate it has set out at least since Furman v. Georgia was decided in 1972 that states limit the imposition of the death penalty to the worst of the worst of criminal offenders. And the numbers bear this out. Since their highs in the late 1990s, executions are down by more than half and new death sentences are down by more than two-thirds. With more than 3,000 people on the nation’s death rows and only 42 put to death last year, the nation has a nearly 80 year supply of condemned inmates at the moment.


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